Morris v. Bank of Attalla

Decision Date19 December 1907
Citation45 So. 219,153 Ala. 352
PartiesMORRIS v. BANK OF ATTALLA.
CourtAlabama Supreme Court

Appeal from Circuit Court, Blount County; W. W. Haralson, Judge.

Action by the Bank of Attalla against E. A. Morris. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The first count in the complaint is for trover for the conversion of a bale of line cotton on or about November 8, 1902. The second count is in case for a destruction of a mortgage lien on said bale of cotton.

The defendant interposed the plea of general issue and several special pleas, as follows: "(2) For further answer to the complaint defendant says that S. T. Massey executed to A G. and E. A. Morris a mortgage on the 6th day of January 1896, upon his entire crop of corn, cotton, and all other produce raised or caused to be raised, or that may accrue to him in any legal manner, during the year 1896, and every year thereafter until this debt is fully paid; that said mortgage was duly recorded in the office of the judge of probate of Blount county, Alabama, on the 10th day of February, 1896, in Mortgage Record 37, page 442, and was for the sum of $150.00 that at the time said mortgage was executed by said Massey to the said Morrises the said Massey resided on a farm in Blount county, Alabama, that he had previously purchased from said Morrises, and that said Massey resided continuously on said farm from that time up until the latter part of the fall of 1902; that said Massey raised the cotton, the subject of this suit, upon said farm during the year 1902; that the debt, or a greater part thereof, secured by said mortgage, is still due and unpaid; that at the time said crop was grown the said Massey was still owner of the farm upon which the cotton was grown; that before the taking of said cotton, on or about the ______ day of ______, said G. A. Morris departed this life intestate, and that said E. A. Morris was, before the taking of the cotton, duly appointed administrator of the estate of the said G. A. Morris, and that said cotton was taken under and by virtue of said mortgage. (3) For further answer to the complaint the defendant says that at the commencement of this suit the plaintiff was due the defendant $50.00 for the wrongful taking of goods and chattels, the property of the defendant, namely, 1,000 pounds of seed cotton and 100 bushels of cotton seed, of the value of $50.00, and the defendant offers to set off the above claim against the demands of the plaintiff and asks judgment for the residue. (4) The defendant claims of the plaintiff $50.00 damages for the conversion by it in November, 1902, of the following chattels: 1,000 pounds of seed cotton and 100 bushels of cotton seed--the property of the defendant, and defendant offers to set off this claim against the demands of the plaintiff and asks judgment for the residue."

Demurrers were interposed to plea 2 as follows: "(1) Said plea does not allege or show that the defendant or person or persons for whom he claims to have been acting at the time he took possession of the cotton, the subject-matter of this suit, had the legal title thereto. (2) Said plea does not aver that said cotton was liable for the satisfaction of the mortgage mentioned and made a part of said plea, as against this plaintiff." Demurrers were filed to the third and fourth pleas as follows: "(1) Said pleas are no answer to the complaint, in that the complaint is in tort for the alleged wrongful taking of cotton, and set-off is no answer to an action in tort. (2) A plea of set-off is not available as a defense to an action in tort." The demurrers to plea 2 were overruled, and those to pleas 3 and 4 were sustained.

The plaintiff then filed the following replication to plea 2 "Plaintiff says that the mortgage indebtedness therein alleged to exist from said Massey to the said Morrises has been paid and satisfied in full before this day in this manner; that is to say, the said Massey has paid said indebtedness by delivering to said mortgagee property conveyed by the said alleged mortgage of sufficient value to pay said indebtedness, and has at divers times paid them money thereon and property covered by the said alleged mortgage, and the said mortgagees, their...

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12 cases
  • Howton v. Mathias
    • United States
    • Alabama Supreme Court
    • November 16, 1916
    ... ... was properly sustained in Tallassee Falls Mfg. Co. v ... First National Bank, 159 Ala. 315, 49 So. 246 ... What we ... have said of laying the time under a ... See, ... also, West v. Cowan, Trustee, 189 Ala. 138, 66 So ... 816; Morris v. Bank of Attalla, 153 Ala. 352, 45 So ... 219; Debter v. Henry, 144 Ala. 552, 39 So. 72 ... ...
  • Colburn v. Mid-State Homes, Inc.
    • United States
    • Alabama Supreme Court
    • September 21, 1972
    ...his jurisdiction was obtained, except on the grounds above noted. Vizard v. Robinson, 181 Ala. 349, 353, 61 So. 959; Morris v. Bank of Attalla, 153 Ala. 352, 357, 45 So. 219. In Ford v. Fauche, 272 Ala. 348, 351, 131 So.2d 852, 854, it is '* * * (W)hen a certifying officer acquires jurisdic......
  • Lessley v. State
    • United States
    • Alabama Court of Appeals
    • June 13, 1922
    ... ... "Tuscaloosa, Ala., July 12th, 1920 ... "The First National Bank 61-70 of Tuscaloosa, Ala ... "Pay to the order of W. B. Lessley $2,901.60, ... twenty-nine ... the payee of said alleged check, was a competent witness ... The ... case of Morris v. Bank of Attalla, 153 Ala. 352, 45 ... So. 219, cited by the state, was one where a stockholder ... ...
  • Barksdale v. Bullington
    • United States
    • Alabama Supreme Court
    • October 14, 1915
    ...or, being unable to write, had made his mark, and the same being attested by a witness who could write his name." In Morris v. Bank of Attalla, 153 Ala. 352, 45 So. 219, it was held that the fact that a subscribing witness to mortgage was a stockholder in the mortgagee corporation did not d......
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